Late on Monday, Attorney General Jeff Session issued a memorandum to all the “grant-making components” within the Justice Department cutting off any grants to sanctuary jurisdictions. In what will no doubt be a surprise to many in the media who misinterpreted the April injunction issued by Judge William Orrick (an Obama appointee) in the lawsuit filed by the City of San Francisco and Santa Clara County, Sessions’ action complies fully with that order.
The May 22 memorandum outlines that any city or county applying for a Department of Justice (DOJ) grant “administered by the Office of Justice Programs and the Office of Community Oriented Policing Services” that requires the applicant to certify compliance with all federal laws will not be eligible for a grant if they are a sanctuary jurisdiction. A sanctuary jurisdiction is defined as any city or county that “willfully refuse[s] to comply with 8 U.S.C. §1373.”
Section 1373 provides that state and local jurisdictions “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officers] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” In other words, any city like San Francisco that forbids its law enforcement officials from notifying the Department of Homeland Security (DHS) when they arrest or detain an illegal alien “will be ineligible to receive such awards.”
By issuing this memorandum, Sessions is simply implementing the terms of the Executive Order (EO) issued by President Donald Trump on January 25, 2017. Section 9 of that EO directed the Attorney General and the Secretary of Homeland Security to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. §1373 (sanctuary jurisdictions) are not eligible to receive Federal grants” (emphasis added). The word “grants” and the specific inclusion of the Attorney General and the Secretary meant that the President was referring to the type of discretionary grant programs administered by DOJ and DHS that local jurisdictions must apply for, not federal entitlement programs and funds such as Medicaid or the Highway Trust Fund or any other executive department.
Yet that is how the Executive Order was misinterpreted by the media and by Judge Orrick. In the lawsuit filed by San Francisco and Santa Clara County, they claimed that the President was ordering the cut off of all federal funds of any kind that they received. Judge Orrick, for example, mistakenly cited the entire $1.7 billion in “federal and federally dependent funds” received by Santa Clara County in 2015-2016, although he acknowledged this included “federal funds provided through entitlement programs.”
Despite its plain and clear language, Judge Orrick claimed that it was an “implausible” reading of the Executive Order to interpret it as only applying to the discretionary “grants” awarded by DOJ and DHS. Thus, he issued a nationwide injunction stopping the executive branch from cutting off the broad range of all federal funding to sanctuary jurisdictions even though there was no threat to cut off all such federal funding in the Executive Order.
But most importantly for the memorandum issued by the Attorney General on Monday, Judge Orrick wrote a very big (and little noticed) exception into his injunction order that would allow the Trump administration to do exactly what it said it wanted to do in the Executive Order. Orrick said the injunction would not prevent the “government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. §1373, nor does it restrict [the government] from developing regulations or preparing guidance on designating a jurisdiction as a ‘sanctuary jurisdiction.’”
In other words, if a grant requires compliance with federal laws such as Section 1373, then DOJ and DHS can refuse to award funds to any sanctuary jurisdiction. That is exactly what Jeff Sessions has done. He has issued guidance defining what a sanctuary jurisdiction is (after consultation with the Secretary of Homeland Security), and has terminated all eligibility for sanctuary jurisdictions to the discretionary grants issued by two of the offices within DOJ. And Sessions warns in the memorandum that, going forward, DOJ “may seek to tailor” other grants “to promote a lawful system of immigration.”
All of these actions are in full compliance with Judge Orrick’s injunction-but-not-really-an-injunction order. And Sessions specifies that the actions being taken by DOJ will be “in accordance with the law and will comply with any binding court order.”
Now that Sessions has acted, hopefully Secretary John Kelly will take the next step and cut off discretionary grants awarded by the Department of Homeland Security to sanctuary jurisdictions. A billion here, a billion there, and pretty soon you are talking about real money.
All of these steps are a necessary component of having, as Jeff Sessions says, “a lawful system of immigration.”
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and former Justice Department official. He is coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.